Stephen Cavanagh

On competing motions in a legal malpractice action, the court refused to strike the defendants’ summary judgment motion in its entirety and narrowed the issues suitable for summary adjudication.

The court held that standard of care and certain causation and damages issues could proceed summarily, while broader causation questions tied to unjoined parties would require a trial-within-a-trial analysis.

The court also ruled extensively on evidentiary admissibility, striking specific affidavit paragraphs, exhibits, and will-state statements while allowing other hearsay-limited material for non-truth purposes related to knowledge and retainer scope.

The matter was directed to continue with a focused summary judgment record and a subsequent case management conference.

The appellant appealed a jury verdict dismissing her negligence action against the respondent homeowners after she slipped and fell on their staircase.

The appellant argued the trial judge erred in excluding the first set of expert slip resistance testing, resulting in a miscarriage of justice.

The Court of Appeal found no error in the trial judge's gatekeeping decision under the White Burgess framework, as the excluded testing differed materially from the actual conditions.

Even if the exclusion were erroneous, no miscarriage of justice resulted because the tampering theory was still advanced at trial through other evidence and the jury's verdict turned on the credibility of the parties.

Following the granting of the defendant's motion to strike, the court addressed the issue of costs.

The self-represented plaintiff had appealed the order alleging judicial bias.

In the circumstances, the court determined that costs should be in the cause to maintain the appearance of fairness, rather than awarding costs to the successful moving party.

The defendant brought a motion for production of documents from the minor plaintiff’s mother, a non-party, relating to the income of the deceased and allegations of sexual abuse.

The court found the documents relevant and necessary for the assessment of damages in a Family Law Act claim and ordered their production, rejecting arguments of prematurity and privacy.

The court also awarded costs to the defendant, with a reduction for issues abandoned or narrowed during the motion.

The Court of Appeal for Ontario dismissed Michelle Botosh’s appeal from the order striking out her 2023 action against members of the defence team from her earlier personal injury litigation.

The court found the new action was a collateral attack on the 2013 judgment and an abuse of process.

The court also upheld the motion judge’s findings regarding witness and lawyer immunity, the absence of a privacy claim, and the reasonableness of the costs award.

The appellant appealed an order striking his amended statement of claim and dismissing his action as statute-barred under the Limitations Act, 2002.

The underlying action involved allegations of water infiltration from neighbouring properties caused by the respondents' excavation of a trench, installation of a drainage ditch, and engineering of water drainage into a culvert.

The Court of Appeal allowed the appeal, finding that the motion judge erred by treating multiple distinct instances of alleged tortious conduct as a single event.

Reading the pleadings generously, it was not plain and obvious that all claims were statute-barred, highlighting the desirability of waiting until pleadings are closed before bringing a Rule 21.01(1)(a) motion on limitation issues.

This decision concerns a status hearing in a civil action for damages for sexual assault.

The plaintiff, A.B., was required to show cause why the action should not be dismissed for delay.

The court found that A.B. provided a satisfactory explanation for the delay, primarily due to the parties' agreement to await the completion of related criminal proceedings and the production of Wagg documents before proceeding with discoveries.

The court also found that the defendants would not suffer non-compensable prejudice if the action continued.

The motion was granted, allowing the action to proceed, and costs were awarded to the plaintiff.

The court granted the motion of Sicotte Guilbault LLP and Joseph Marcel Denis Sicotte to strike the statement of claim against them, without leave to amend, and dismissed the action.

The plaintiff, Dean Henderson, alleged fraudulent conveyance, conspiracy, and unjust enrichment in relation to the transfer of assets from Amega Holdings (Barbados) Inc. and Aubrey de Young to the Sicotte defendants.

The court found that the statement of claim disclosed no reasonable cause of action against the Sicotte defendants, as the pleadings were bald, conclusory, and lacked material facts.

The court also found that the statutory causes of action under the Fraudulent Conveyances Act and Assignments and Preferences Act could not be made out against the Sicotte defendants, and that the conspiracy and unjust enrichment claims were not properly pleaded.

Leave to amend was denied.

Following the dismissal of the plaintiff's action after a three-week trial, the successful defendant sought costs on a substantial indemnity basis.

The defendant argued the plaintiff made unfounded allegations of dishonesty and that a nominal settlement offer showed the plaintiff knew the claim lacked merit.

The court rejected the request for substantial indemnity costs, finding that while the plaintiff's allegations were not proven, he sincerely believed them and had some basis for his perception.

The court also held that settlement offers should not be used as evidence that a party believes their case lacks merit.

The court awarded the defendant partial indemnity costs fixed at $150,152.65.

The plaintiff, a lawyer, sued his former firm for breach of contract regarding the transfer of client files and wills upon his departure, and for various accounting discrepancies.

The court found that despite being an "independent practitioner" by contract, the plaintiff's practice was highly integrated with the firm, creating obligations and potential liability for the firm towards clients.

Therefore, the firm was entitled to require client directives for file transfers.

The court dismissed the claim for damages related to loss of productivity.

The court also dismissed the financial claims, finding they were not properly pleaded and were statute-barred.

The court rejected the plaintiff's conspiracy theory regarding the firm attempting to appropriate his clientele.

The Superior Court of Justice dismissed a civil action brought by Stephen Massey, purportedly also on behalf of his two daughters (J.M. and C.M.), against 31 defendants including the Children's Aid Society, the Office of the Children's Lawyer, various lawyers, and his ex-wife.

The claim, a collateral attack on prior family law proceedings that concluded in 2016, alleged child abuse and professional misconduct.

The court dismissed the action against Mr. Massey with prejudice due to his failure to attend case conferences, non-compliance with court orders, and the action being frivolous, vexatious, and an abuse of process, largely barred by the limitation period.

The claim on behalf of J.M. and C.M. was dismissed without prejudice, acknowledging potential discoverability issues and the uncertainty of their authorization.

The court imposed a leave requirement for Mr. Massey to initiate future proceedings against these defendants and awarded costs against him.

This endorsement arises from a case management conference concerning the defendants' summary judgment motion.

The court addressed disagreements between the parties regarding the timetable and the filing of evidence, particularly concerning examinations of non-party witnesses under Rule 39.03.

The judge clarified the purpose of the pre-motion conference and ruled on the admissibility of additional evidence post-conference and after Rule 39.03 examinations, adopting the reasoning from Martin v. Kiewit Alarie A Partnership.

A detailed timetable for the motion was ordered.

The defendants brought a motion to strike the plaintiff's 2,250-page affidavit, filed in response to a summary judgment motion, arguing it contained inadmissible hearsay and irrelevant evidence.

The court granted the defendants' request, striking the affidavit in its entirety with leave for the plaintiff to file a fresh affidavit.

The decision emphasized that the affidavit was prejudicial to a fair hearing and an abuse of process due to its voluminous and inadmissible content, providing specific directions on evidentiary requirements for summary judgment motions.

The plaintiff, Jayson Hopkins, sued his former lawyer, Patrick Murphy, and law firm, Beament Green, for professional negligence, alleging that Murphy negligently advised him to settle his motor vehicle accident lawsuit in 2008 for an improvidently low amount.

Hopkins sought approximately $3 million in damages, arguing that the $127,900 settlement for general damages and loss of income was inadequate.

The defendants denied negligence, asserting that the settlement was reasonable and that they met the standard of a prudent solicitor.

The court addressed whether Murphy was negligent or breached his contract and whether the "loss of chance" doctrine should apply.

The court found that the plaintiff failed to prove negligence or breach of contract, primarily due to the lack of expert evidence on the standard of care and the failure to conduct a "trial within a trial" or demonstrate its impossibility.

Consequently, the plaintiff's claim was dismissed.

The defendant brought a motion under Rule 25.11 of the Rules of Civil Procedure to strike paragraphs of the statement of claim, arguing they were irrelevant, scandalous, or an abuse of process.

The challenged paragraphs pleaded that the plaintiff's sole director, Mr. Syed, suffered from bipolar disorder and was incapable of managing his affairs when an agreement of purchase and sale (APS) was signed.

The court granted leave for the plaintiff to amend the claim to plead that the defendant knew or ought to have known of Mr. Syed's mental incapacity and to describe him as the "directing mind" of the corporation.

However, the court limited the scope of mental health evidence to the relevant period of the transaction.

The motion to strike was partially granted with leave to amend, and partially dismissed, as the court found the law on corporate mental incapacity in contract was not sufficiently clear to strike the pleadings entirely.

This endorsement addresses the costs arising from two motions in an estates matter: one brought by Royal Trust Corporation of Canada (Estate Trustee) to appoint the Public Guardian and Trustee as Litigation Guardian for Raymonde Haddad, and a cross-motion by Doris Haddad-Bejjani seeking her own appointment.

Royal Trust's motion was granted, and Doris's motion was dismissed.

The court, applying the modern approach to costs in estates litigation, found Royal Trust, the Children's Lawyer, and Rosemary Whelan to be successful parties.

Doris Haddad-Bejjani, as the unsuccessful party whose conduct complicated the proceedings, was ordered to pay partial indemnity costs to the successful parties from her testamentary trust.

The balance of Royal Trust's and the Children's Lawyer's full indemnity costs were ordered to be paid from the capital of the Estate.

The plaintiff, Stephen Massey, brought a negligence claim seeking $7 million against his former counsel, Ralph A. Lee Law Office and Ralph A. Lee, alleging inadequate representation in a family law matter.

The defendants moved to strike the Statement of Claim under Rule 25.11, arguing it failed to properly plead elements for ten causes of action and was too vague.

The plaintiff was self-represented and did not respond to the motion.

The court struck claims for breach of duty of care, breach of trust, breach of confidence, intentional infliction of mental distress, malice, bad faith, and malpractice without leave to amend, finding them seriously deficient and unlikely to succeed.

Claims for negligence, negligent misrepresentation, breach of contract, and breach of fiduciary duty were struck with leave to amend, as material facts were scattered but could be redrafted.

The court dismissed the defendant's request to strike the entire claim, finding it not entirely without merit.

The court also granted the defendant's request for security for costs of $10,000, citing the plaintiff's unpaid prior cost orders and insufficient assets, and awarded $5,000 in substantial indemnity costs for the motion to the defendant.

The defendant, Felicia Georgina Zigiris, brought a motion for costs after the plaintiffs discontinued their action against her.

The plaintiffs had alleged conspiracy, intentional infliction of mental distress, and intrusion upon seclusion.

The court found no bona fide cause of action against Ms. Zigiris, as the evidence presented (letters and an audio recording) did not substantiate the serious allegations of conspiracy or disclosure of health information.

The court struck inadmissible opinion and argument from the plaintiffs' affidavits.

Given the unsubstantiated and serious nature of the allegations, the court awarded costs to Ms. Zigiris on a substantial indemnity basis for the discontinued action and on a partial indemnity basis for the costs motion, rejecting the plaintiffs' prior settlement offer.

Wawanesa Mutual Insurance Company sued Barry Marta and Lawson LLP for solicitor's negligence.

The lawyer defendants moved under Rule 21.01(3)(b) of the Rules of Civil Procedure to have the action stayed or dismissed, arguing Wawanesa lacked legal capacity to sue, contending the claim was a subrogated action requiring the insured's name.

The court dismissed the motion, finding Wawanesa, as a licensed insurance company, possessed the legal capacity to commence the action, and that the motion under Rule 21.01(3)(b) was not for assessing the merits of the claim.

The plaintiff brought a motion to amend his statement of claim and to continue the action under the simplified procedure, just weeks before a scheduled six-day trial.

The court granted leave to amend the pleadings, finding that the amendments arose from the same factual matrix and would not cause prejudice that could not be compensated by costs or an adjournment.

However, the court dismissed the request to continue under the simplified procedure, noting the motion was brought late in breach of a pre-trial order and that it would be unfair to the defendant to change the procedure solely to allow the plaintiff to avoid adverse costs consequences.